United States: Why The TCCWNA Matters To Retailers In New Jersey

Brett Carroll is a Partner in Holland & Knight's Boston office


  • In the past few years, an unprecedented number of consumer class action claims have been filed under the New Jersey Truth-in-Consumer Contract Warranty and Notice Act (TCCWNA).
  • These claims have resulted in retailers spending hundreds of thousands, if not millions, of dollars defending questionable class claims that have little to do with protecting consumers' rights.
  • The increase in TCCWNA claims is likely to continue in the foreseeable future. Retailers need to understand the issues involved and take proactive steps to minimize their risk and exposure.

The New Jersey Truth-in-Consumer Contract Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 et seq., was enacted in 1981 by the New Jersey Legislature to address a growing trend of calculated deception in the consumer context. In concept, the TCCWNA had laudable goals to protect New Jersey residents from unscrupulous, fly-by-night businesses that were taking advantage of consumer rights. However, the recent wave of purported consumer class actions brought under the TCCWNA do not just target "bad actors" in order to protect the rights of New Jersey consumers. Rather, the vast majority of these claims target legitimate companies that contribute lawfully to commerce across the country, including in New Jersey, seemingly in order to line the pockets of class counsel without regard to whether there are actually legitimate consumer issues at stake.

For 30 years, the TCCWNA had a low profile. However, in the past few years, an unprecedented number of TCCWNA claims have been filed throughout New Jersey courts. These claims have resulted in retailers spending hundreds of thousands, if not millions, of dollars defending questionable class claims that have little to do with protecting consumers' rights. Despite recent favorable decisions for retailers, TCCWNA claims will likely increase in the foreseeable future. Retailers need to understand the issues involved and take proactive steps to minimize their risk and exposure.

What the TCCWNA Was Designed to Address – and How It Is Now Used Against Retailers

The legislature history of the TCCWNA confirms that it was designed to protect consumers from contract provisions that are illegal and unenforceable. Critically, "the provisions must deceive[] a consumer into thinking that they are enforceable and for this reason the consumer ... fails to enforce his rights."1 Generally, Section 15 of the TCCWNA prohibits retailers from offering or displaying any written warranty, notice or sign to a consumer "that violates any clearly established legal right of a consumer" under state or federal law. Section 16 prevents retailers from including any language in a consumer contract, warranty, notice or sign whereby: (a) the consumer "waives his rights under th[]e act," and/or (b) the provisions may be void, unenforceable, or inapplicable in "some jurisdictions" without specifically stating whether they are void, unenforceable, or inapplicable in New Jersey or not.

The TCCWNA does not create new rights or responsibilities, but it provides consumers with an additional remedy to enforce existing rights and responsibilities established by other laws. A violation of the TCCWNA results in either actual damages or a $100 penalty per violation, plus attorneys' fees and costs.

The TCCWNA's popularity increased significantly in 2009 as a result of a decision issued by a New Jersey Appellate Court, which held that TCCWNA claims could be brought as a class action even if the plaintiff has not suffered an ascertainable loss.2 This case was followed by a series of state court decisions that suggested to plaintiffs' counsel that TCCWNA claims were viewed as "plaintiff-friendly" and, perhaps, less difficult to sustain than actions filed under the New Jersey Consumer Fraud Act.

Because class counsel is emboldened by the purported concept that a mere technical violation of the TCCWNA, even without any resulting impact, harm, loss or deception felt by the consumer, can result in a violation, companies are faced with defending class claims with unrealistic expectations of expected damages in the tens of millions of dollars.

Class Counsel Targets in New Jersey

Because enforcement of the TCCWNA has been effectively left to private attorneys, the increase in TCCWNA claims is expected to continue for the foreseeable future. To this end, on April 22, 2016, the New Jersey Civil Justice Institute issued troubling statistics confirming the dramatic increase in TCCWNA claims filed over the past six years. Although the first 25 years of the statute saw little – if any – use, the past six years has confirmed, on average, 20 class actions being filed each year, with 2015 reaching more than 25. If the first few months of 2016 are any indication, the total number of new actions in 2016 will likely exceed 30.

Originally, claims focused on terms and conditions contained in retailers' written consumer contracts, warranties, notices and/or signs. Cases involved automobile sales contracts, restaurant menus, gift cards, advertising materials, telephone pitches and storage rental agreements, among other matters.

While the "written consumer-facing claims" continue, class counsel have shifted their focus toward "web-based consumer communications." Specifically, class claims have increased significantly against online retailers, with a focus on the retailers' website terms and conditions. The retailers targeted are wide ranging, including auto parts manufacturers and distributors, home goods retailers, cosmetic companies, toy stores, car rental companies, clothing retailers, electronic retailers, appliance retailers, storage facilities and restaurant groups, among many others. The new wave of complaints addresses terms and conditions that purport to disclaim or limit liability, limit or disclaim damages, shorten statutes of limitations and limit indemnification obligations, as well as items such as choice of law, severability and savings clauses.

Recent Trends Provide Defenses for Retailers

For some time, TCCWNA case law did not appear favorable to retailers, especially given the state court's significant reliance on New Jersey's reputation for being strict with respect to consumer fraud. These decisions often pushed the boundaries of the TCCWNA, leaving retailers with no choice but to attempt to settle claims on somewhat favorable terms. However, numerous favorable federal court decisions have been issued in the past few years, providing retailers with increased hope and precedents to limit the unanticipated and unlawful scope and breadth of TCCWNA enforcement.3

In addition, an increasing number of state courts in New Jersey are more carefully scrutinizing TCCWNA claims, indicating that TCCWNA claims must be premised on affirmative, deceptive conduct.4

Holland & Knight has specific and recent experience with the TCCWNA. This year, on behalf of a national furniture retailer, Holland & Knight successfully defeated a purported TCCWNA class action arising out of alleged violations of the New Jersey Delivery of Household Furniture and Furnishings regulations. After removing the action to federal court under the Class Action Fairness Act and successfully confirming the U.S. District Court for the District of New Jersey's jurisdiction in a challenge before the U.S. Court of Appeals for the Third Circuit, the District Court dismissed all claims against the retailer. The District Court confirmed that, in order to sustain a TCCWNA claim, the prospective plaintiff must be "aggrieved" such that he or she has suffered the "effects of a violation" of the TCCWNA or that the plaintiff's "personal, pecuniary, or property rights have been adversely affected by another person's actions."5 The District Court flatly rejected the plaintiff's argument that even technical violations of the TCCWNA will result automatically in liability. The matter is now before the Third Circuit Court of Appeals along with another case against a second furniture retailer.

Considerations for Retailers

There is considerable uncertainty given the expected increase in actions and lack of clear, definitive guidance from the courts concerning the types of TCCWNA claims that can be sustained. Regardless of size and type, every retailer must take the threat of TCCWNA claims seriously.

The increased trend in purported class action filings claiming TCCWNA violations undoubtedly will continue for the foreseeable future. The statute provides a quick avenue for plaintiffs to evade the more cumbersome requirements of a Consumer Fraud Act claim, while still enjoying the benefits of prospective class status. In that respect, the prospect that minor, technical violations can result in multimillion-dollar class awards is especially appealing to plaintiffs' counsel.

To minimize their risk and exposure, retailers should:

  • Engage in active (and immediate) compliance review of consumer-facing communications: Undertake an immediate comprehensive analysis of consumer communications, whether web-based, social media, form contracts, terms and conditions, and/or any other written communication provided to consumers; take active steps to refine and/or revise terms to ensure more strict compliance with the "letter of the law" in an attempt to avoid being targeted by class counsel, with a particular focus on website terms and conditions, including provisions that limit liability or disclaim warranties.
  • Confirm internal policies concerning modifications to consumer-facing communication: Establish internal policies such that changes to consumer communications (whether web-based, social media, or hard copy) are actively evaluated for continued compliance with the law to minimize potential suits.
  • Consider targeted training where appropriate: Identify specific New Jersey regulations that impact your particular industry and provide training, as appropriate, to managers and/or employees who may be responsible for providing company communications to consumers.
  • Evaluate the benefits of mandatory mediation/arbitration provisions: Consider whether such provisions could have a positive impact on any TCCWNA claims brought.
  • Proactively evaluate insurance coverage: Evaluate your insurance policies to determine whether these types of claims are covered – at least in terms of providing a defense based upon the standard allegations in these types of actions – and speak to your broker or insurer to determine what types of additional coverage may be available to protect you in the event a claim is filed.
  • If sued, consult with experienced counsel immediately: While a number of defenses exist to these claims, depending upon the particular facts at issue and numbers of consumers involved, exposure could easily reach tens if not hundreds of millions of dollars, especially when considering the terms and conditions contained in a commercial website. Further, early consideration must be given to the best venue for a case (i.e., state or federal court, assuming federal court is an option), proof to support removal to federal court when possible, early dispositive motions to dismiss and potential discovery issues, including class-related discovery.


1. Statement to Assembly, No. 1660 (May 1, 1980) (emphasis supplied).

2. See United Cons. Fin. Ser. v. Carbo, 410 N.J. Super. 280 (App. Div. 2009).

3. See Watkins v. DineEquity, Inc., 591 Fed Appx. 132 (3d Cir. 2014) (refusing to find TCCNWA claims in the absence of affirmative, deceptive conduct); see also Wilson v. Kia Motors Am, Inc., 2015 WL 3902540 (D.N.J. June 25, 2015) (requiring consumer to prove each element of his underlying Consumer Fraud Act claim to support a TCCWNA claim); Matijakovich v. P.C. Richard & Son, No 2:16–cv–01506–WHW–CLW (D.N.J. June 21, 2016) (concluding that omission of regulatory notices not actionable under the TCCWNA); Mladenov v. Wegmans Food Markets, Inc., 124 F. Supp. 3d 360 (D.N.J. 2015) (dismissing TCCWNA claim in which consumer could not prove each element of his underlying claim).

4. See, e.g., Wright v. Bank of Am., Inc., No. L–433–15, 2016 WL 631910 (N.J. Super. Ct. Jan. 28, 2016) (holding that "'deception' . . . is integral to the TCCWNA claim" and dismissing TCCWNA claim where consumer not deceived by omission of information required by statute); see also Walters v. Dream Cars Nat'l, LLC, No. BER–L–9571–14, 2016 N.J. Super. Unpub. LEXIS 498 (N.J. Super. Ct. Mar. 7, 2016) (recognizing that the TCCWNA is designed to "target those vendors that engage in deceptive practice and [seeks] to only punish those vendors that in fact deceive the consumer, causing harm to the consumer"); Greenberg v. Mahwah Sales & Serv., Inc., No. BER–L–6105–15, 2016 WL 193485 (N.J. Super. Ct. Jan. 8, 2016) ("TCCWNA's primary goal is to prevent confusion among consumers as to their legal rights."); Cameron v. Monkey Joe's Big Nut Co., No. BUR–L–2201–07, 2008 WL 6084192 (N.J. Super. Ct. Aug. 4, 2008) (holding that consumer had no viable TCCWNA claim because he was not aggrieved when he had not suffered the effects of the alleged violation); Walker v. Giuffre, No. MID–L–3187–03 (N.J. Super. Ct. May 17, 2007) (dismissing TCCWNA claim because there is "nothing in the statute to suggest that the Legislature intended to authorize a consumer, who is not actually harmed, to bring a TCCWNA claim based on purely CFA violations as to which she would have no standing to bring suit under the CFA itself").

5. Wenger v. Bob's Discount Furniture, LLC, No. 3:14–cv–07707–FLW–LHG (D.N.J. Feb. 29, 2016).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions